Since it inception the UFW was been strongly involved in the immigration
policies that affect farm workers in this country. The UFW was actively
involved in the legislative process that resulted in the enactment
of the Immigration Reform and Control Act of 1986 (IRCA). The UFW
represents and organizes farm workers in several states, including
California, Washington, Arizona, Texas, and Florida. The Farm Workers
that our organization works with include workers that work in wine
grapes, table grapes, raisin grapes, citrus, row crops such as broccoli,
lettuce, celery, tomato and other vegetables, mushroom plants, nurseries,
tree fruit, and roses. The UFW representation of and day-to-day
work with farm workers in various states and in various crops for
the last 38 years gives it a unique background and experience to
provide meaningful comments and insight into the issues concerning
immigration policy and how it affects farm workers in this country.
There is really no dispute over the economic realities facing
America's farm workers at the beginning of the 21st Century. The
most recent and reliable information we have from the National Agricultural
Workers Survey shows that the situation of farm workers has continued
to decline: wages have stagnated, annual earnings remain beneath
the poverty level, and farm workers face chronic unemployment.
1) In 1997-98, most farm workers held only one farm job per year
and were employed in agriculture for less than half a year.
2) Even in July, when demand for farm labor peaks in many parts
of the country, just over half of the total farm workforce held
3) Since 1990-1992, the average work year in agriculture has decreased
from 26 to 24 weeks.
4) At the same time despite a strong economy and record prosperity,
farm worker wages have lost ground relative to those of workers
in the private, nonfarm sector. Adjusted for inflation, the average
real hourly wage of farm workers has dropped from $6.89 to $6.18.
Consequently, farm workers have lost 11 percent of their purchasing
power over the last decade.
5) Today fewer farm workers own a vehicle. More workers now rely
on contractors and raiteros for transportation to work often in
unsafe and uninsured vehicles.
6) Another large change is in home ownership. In 1994-95, one third
of all farm workers owned or were buying a home. By 1997-98, only
half as many farm workers were buying their home.
United States agriculture has been dependent on foreign labor for
a long time. The most recent statistics show that 81% of the 1.6
million seasonal agricultural workers in the United States were
born outside the United States.
However, United States agriculture is also increasingly dependent
on an influx of new immigrants as large numbers of farm workers
leave the fields for better-paying non-farm jobs. This continual
outflow results in an unstable labor market that requires constant
replenishment from abroad. Thus, the agricultural labor market serves
as the entry point for low-wage immigrants for the entire U.S. economy.
We know why farm workers leave farm work. They leave because of
the difficulties of making a living from U.S. farm work. The majority
of migrants and former migrants live in poverty, endure poor working
conditions, and receive no government assistance. Only those migrants
with few alternatives stay in farm work. This results in an aging
legal workforce composed of workers with little education and lacking
English, whose improvements in working standards are continually
undermined by new workers willing to work for less.
The poor living and working conditions of farm workers in the United
States are mainly due to farm labor practices that shift production
costs to workers. In particular, the farm labor system relies on
temporary jobs, uses labor contractors for labor management, and
recruits workers in a way that results in a chronic oversupply of
labor. Each of these practices reduces employer costs at the expense
of worker earnings. The other factor in the poor living and working
conditions of farm workers is the continued exclusion of farm workers
from coverage under labor laws, which protect other workers. Today,
more than 60 years after the passage of the National Labor Relations
Act, the majority of farm workers in the United States are without
collective bargaining rights. In 13 states, farm workers are not
protected by workers compensation insurance. Despite being chronically
unemployed and underemployed, few farm workers are able to qualify
for unemployment compensation. Farm workers still are not entitled
to overtime under the Fair Labor Standards Act. Given these realities,
it is not surprising that workers leave the fields.
We believe that the current labor practices in U.S. agriculture
are unsustainable in the long term and, unless fundamentally changed,
will continue the socially destructive economic hardships faces
each day by the farm workers throughout this country while at the
same time doing severe damage to U.S. agriculture's global competitiveness.
Therefore, the real controversy is over what should be done to
bring about this fundamental change. There are currently two radically
different solutions proposed to address the problem of labor market
instability in agriculture.
One proposal is to create a large-scale guest worker program along
the lines of the Bracero program of the 1950s. This can be done
either by stripping out the labor protections for U.S. and foreign
workers from the existing H-2A program or by creating a new program
similar to the one proposed by Senator Phil Gramm. In either case,
there would be no effort to improve wages and working conditions
for farm workers in the United States. The growers seek to maintain
the status quo or even to reduce wages still further.
However, the guest worker option would stabilize the labor market
by denying the farm workers the basic freedom to change employers.
The key attraction for employers of guest worker programs such as
H-2A and H-2B is that workers can only work for the employer who
holds their visa. The H-2A employer does not have to worry that
his employees may leave him for an employer who offers better pay
or working conditions. Thus, there is no incentive under such programs
to ever improve wages or working conditions.
H-2A workers are not slaves but neither are they free. If they
run away from the farm, the INS will seek to deport them and bar
them from future entry. If they complain about their treatment,
they can be certain that their employer will not request them in
future seasons and they risk being blacklisted from the program
altogether. We understand that other control measures such as forced
savings, which will only be returned to the worker after his return
to his home country, are also under consideration. As the program
expands, we believe that these measures would have to become increasingly
draconian in order to keep the "guest workers" on the farms.
We remain opposed to such programs because without the basic freedom
to change employers, all the supposed legal protections for the
workers are more theoretical than real. As long as a worker's future
employment as a guest worker is dependent on his employer's good
will, the guest worker is not in a position to exercise his legal
rights. Nor can we rely on DOL to protect the workers' rights. Unfortunately,
our long experience with the H-2A program has shown, time and time
again, that the government will not stand up against powerful special
In the end, a large-scale guest worker program would create a caste
of despair where some members of our society would be trapped in
substandard employment without the possibility of social and economic
Over time, America would become dependent on the continued exploitation
of these workers in the same way that the South became dependent
We believe that such a system is the opposite of our most cherished
national values and beliefs.
We believe that there is a better answer.
If we want to slow the influx of new immigrants and stabilize the
agricultural labor market, we need to address the root cause of
the instability ? the poor wages and working conditions of farm
workers in America? and divert the costs of instability from the
farm workers back to the employers, taxpayers and consumers who
benefit from their labor.
The first step is to adjust the status of the undocumented farm
workers already here. For poor workers all over the world, the first
step is always freedom. Legal status gives workers the freedom to
choose ? freedom to choose whom they work for and whom they don't
work for, and the freedom to join a union of their fellow workers
to protect their interests collectively. A free labor market will
create economic incentive for employers to attract and retain workers
by offering better wages and working conditions.
Legalization by itself is not enough. We need to do what should
have been done decades ago and extend to farm workers the same legal
protections and benefits enjoyed by other workers. Legalization
itself will make many farm workers eligible for unemployment insurance
and the earned income tax credit, which can significantly increase
farm worker incomes at little cost to agricultural employers.
And we need to organize. The history of immigration in the 20th
century clearly shows that strong unions offer new immigrants one
of the best routes to full integration into American life.
It is with this understanding of the underlying problem and its
solutions that the UFW has attempted to find a compromise with the
agricultural employers. The union has sought to find a compromise
that would (1) create an adjustment program for hundreds of thousands
of undocumented farm workers and their families in the U.S. and
(2) respond to employer demands to reduce "red tape" in the existing
H-2A guest worker program without weakening labor standards. To
this end, the UFW entered into direct negotiations with the National
Council of Agricultural Employers ("NCAE") under the auspices of
Reps. Howard Berman(D-CA) and Gary Condit (D-CA). Later, the talks
were broadened to Senators Bob Graham (D-FL), Gordon Smith (R-OR)
and Larry Craig(R-ID). Last fall, the UFW reached an historic agreement
with the agricultural employers which had bipartisan, bicameral
support and would have been enacted but for the last minute opposition
of Sen. Phil Gramm, who opposed the adjustment or legalization feature
of the agreement.
There are two parts to the compromise. One part would establish
a new legalization program or "agricultural worker adjustment" program,
based both on past agricultural work in the United States and a
prospective work requirement. The other part changes the procedures
and job terms under the H-2A temporary foreign agricultural worker
Undocumented farm workers will be eligible to apply for temporary
immigration status based on their past work experience which would
place these farm workers on a track toward permanent resident status
and accord them the full labor rights of American workers. As temporary
residents, the newly legalized workers will have the same rights
as permanent residents to travel abroad and to work outside of agricultural
employment. However, they will need to perform additional agricultural
work if they wish to gain permanent resident status.
To be eligible for temporary resident status, an individual will
have to show that he or she worked 100 days in agricultural employment
during any 12 consecutive months in the 18 months prior to enactment
of the bill. The definition of "agricultural employment" is the
same as under the Fair Labor Standards Act. Agriculture includes
the cultivation and tilling of the soil, dairying, the production,
cultivation, growing and harvesting of any agricultural commodity,
the raising of livestock, bees, fur-bearing animals, or poultry,
and any practices performed by a farmer or on a farm as an incident
to or in conjunction with such farming operation. Work done as an
H-2A worker is specifically included.
- To be eligible for permanent resident status, the worker will
have to complete the following work requirements:
- The farm worker must work 360 work days in agricultural employment
during the 6 year period beginning upon enactment of the bill.
- The farm worker must work 240 work days (out of the 360 work
days) during the first three years of the program.
- Finally, the 360 days must be distributed so that the farm
worker works at least 75 days in 3 12-month periods during the
6 year period of the program.
The compromise specifically provides for the spouse and minor
children of the farm worker who may not be eligible for temporary
resident status. Family members may not be deported from the U.S.
while the farm worker is in temporary resident status; however,
family members will not be eligible for employment authorization
(unless the family members have some other status which allows them
to work). When the farm worker completes the work requirement, family
members may be included under the farm worker's application for
permanent resident status without the usual waiting time caused
by per country limits.
The proposal also provides certain safeguards for workers while
they are attempting to meet the prospective work requirements:
- Workers will be credited for any days lost because of an injury
or disease arising out of the worker's agricultural employment.
- An agricultural employer may not terminate a temporary resident
except for just cause and an arbitration procedure would be set
up to ensure that a worker who is fired without just cause is
credited for any days of work lost as a result.
- The Attorney General has the discretion to waive the 240 day
requirement in the case of a farm worker who has completed 200
days and fails to meet the 240 day standard because of a personal
emergency or a natural disaster which limits the availability
of agricultural work.
The 18-month application period for the legalization program would
begin six months after enactment. Temporary residents would have
until the seventh year after date of enactment of the bill to apply
for permanent resident status.
The compromise also addresses concerns that H-2A employers had
regarding making it procedurally easier to obtain H-2A workers.
However, the UFW was able to preserve the substantive standards
and worker protections found I the existing H-2A program and the
UFW was able to add additional protections for H-2A workers. The
compromise proposal would make the following changes to the current
H-2A guest worker program.
- The H-2A system would be streamlined to become a "labor attestation"
program modeled after the H-1B program with less paperwork and
government oversight. The employer will be required to provide
specific assurances that the terms and conditions of employment
meet the standards set forth in the statute, unless the job opportunity
in question is covered by a collective bargaining agreement with
a bona fide labor union.
- Recruitment requirements would be reduced, but employers must
still hire qualified U.S. workers who apply by the time one-half
of the season has elapsed ("50% rule").
- Most of the basic H-2A worker protections will continue including
the three-fourths minimum work guarantee, reimbursement of transportation
and subsistence costs, and workers compensation. Some protections
which currently exist only in regulations will become statutory.
- Growers remain obligated to provide free housing to their workers
which meets government standards. However, growers will be allowed
to provide a housing allowance in lieu of the free housing, but
only where the Governor of the state certifies that there is adequate
housing available for migrant farm workers and H-2A workers in
the area of intended employment. The amount of the allowance will
depend on whether the job is located in a metropolitan or nonmetropolitan
county and will be based on fair market rentals as determined
- Growers will also have to continue to pay the "AEWR" (the special
minimum wage required to be paid H-2A workers) However, the AEWRs
will be frozen at their current level until Congress has the benefit
of two studies to be carried out over the next two years. One
study will be done by GAO; the other study will be done by a Commission
on Agricultural Wage Standards to be appointed by the Secretaries
of Agriculture and Labor with equal representation of employers
and farm workers. Unless Congress acts within the first three
years of the bills passage, the AWER freeze will end and the current
methodology would apply after that date.
- For the first time, H-2A workers will be covered by the Migrant
and Seasonal Agricultural Worker Protection Act ("AWPA"), the
most important federal statute protecting farm workers in the
work place. Among other things, the Act provides a private right
of action for farm workers to enforce the terms of their working
arrangements with their employers.
The changes to the H-2A program will go into effect one year after
At this time the agriculture industry has stepped away from our
compromise due to the fact that certain H-2A employers are demanding
that H-2A worker wages be reduced to prevailing wage, which in many
cases would be the Federal minimum wage of $5.15 an hour as opposed
to the wage that is presently required under the H-2A program that
runs at about $7.25 an hour. The industry is also now refusing to
have H-2A workers covered by AWPA. These are areas in which we will
not compromise. Thus, once again it appears that the industry is
considering taking the low road on these issues.
The UFW remains hopeful that the agricultural industry, will once
again embrace the compromise, so that we can move forward with enacting
this compromise into law. In any event the UFW will strongly oppose
any move by the industry to weaken or eliminate worker protections
and standards found in the current H-2A program.
For more information on farm worker legalization you might want
to visit the California Rural Legal Assistance Foundation's National
Clearinghouse On Agricultural Guest Worker issues at